Canadian HR Reporter

CANADIAN HR REPORTER September 4, 2017 FEATURES 27 Compensation Surveys Incentive Programs Job Descriptions Job Evaluation Pay Equity Performance Appraisal Salary Administration Sales Compensation (416) 498-7800 www.resourcecorporation.com COMPENSATION CONSULTING LABOUR RELATIONS Strengthening union activity in Alberta Changes to Labour Relations Code include card checks, first-contract arbitration By Birch Miller and Bruce Graham S ignificant changes to Al- berta's workplace laws are coming soon with the passage of the Fair and Family- friendly Workplaces Act (Bill 17) — which will bring about the biggest changes to Alberta's Em- ployment Standards Code and Labour Relations Code in de- cades. All provincially regulated employers will be affected, with the majority of changes to union workplaces coming into effect on Sept. 1, 2017, and the remainder coming into effect on Jan. 1, 2018. Some of the changes brought about may prove to be contro- versial, including a flurry of new measures to promote, enhance and strengthen union activity in Alberta. Here are some of the more notable changes: Card checks and certification Alberta will adopt a hybrid card- check system in order to certify new trade unions. is is likely to have significant ramifications for union organization in Alberta. Where a union has 65 per cent or more support (as shown by workers signing cards or be- ing members in good standing), the union can become the certi- fied bargaining agent — without a secret ballot vote taking place. If between 40 and 65 per cent of employees sign cards, then a se- cret ballot vote will be conducted. Where union support is shown by way of a petition, a vote will be required. Most unions in Canada sup- port card-check systems because secret ballots are less likely to result in union representation. e move to a card-check system (even a hybrid one) may increase unionization in Alberta. Card checks could potentially create difficult working environ- ments as union organizers and workers wanting union repre- sentation may influence their colleagues to sign cards. Another issue under the card-check system is employers are less likely to be aware of union campaigns while they are taking place. As a result, unions tend to be the single or dominant source of information, and workers may not always be given a balanced picture before electing to support a union. Bill 17 is also extending the allowable period for union campaigns from 90 days to six months. erefore, unions will be able to apply for certification long after employees have applied for membership. During the period between an employee signing a card and the union applying for certification, it is possible employees will change their minds about unionization but, as a result of moving to this hybrid card-check system, they may not have the chance to cast their vote through a secret ballot. Firm timelines will also be im- posed to ensure certifications are dealt with promptly (20 days from the date of application or 25 days in situations involving a mail-in ballot). First-contract arbitration Employers and unions will now be able to seek first-contract ar- bitration upon application to the Labour Relations Board. is will allow a union to have the first col- lective agreement imposed on an employer if the union is un- successful in bargaining over the course of 90 days. e board will also have new, wide-ranging powers to direct the parties on next steps (such as tabling of final proposals, media- tion and ordering votes). Failing a satisfactory outcome, the board will also be empowered to require binding arbitration of a first col- lective agreement. Rand formula e inclusion of a Rand formula in collective agreements man- dates that dues be deducted from employee pay and remitted to the union. Currently, the inclusion of such a clause is negotiated by the parties during bargaining. How- ever, it will now be imposed in Al- berta in all collective agreements upon a union's request. Unfair labour practices Employees will no longer have to prove an unfair labour practice occurred as Bill 17 shifts the onus to employers to disprove such conduct occurred. e introduc- tion of this reverse-onus provision will make it easier for employees to challenge employer actions such as discipline or dismissal. Where an employer is found to have engaged in an unfair la- bour practice, the Labour Rela- tions Board will be empowered to grant a union automatic certifica- tion without a vote. Similarly, the board may revoke a union's cer- tificate without a vote if a union is found to have engaged in an unfair labour practice. Other noteworthy changes include: • increased board and arbitrator powers • expanding the right to unionize to farm and ranch workers (ex- cept for family members) • giving unions the explicit right to picket the secondary premises of an employer as well as locations of third parties helping an em- ployer resist a strike • the Labour Relations Board no longer being able to suspend the deduction and remittance of union dues when an illegal strike is taking place • essential services being expand- ed to include health-care labora- tories, blood supply services and continuing care facilities (includ- ing those that are non-profit and privately owned) • construction workers no longer needing to be employed for 30 days before participating in a union certification vote • appeals from arbitration deci- sions will be heard by the Labour Relations Board (not the courts) and appeals from board deci- sions will proceed directly to the Court of Appeal. Employers are likely to con- front a number of challenges as a result of these changes to Alberta's workplace laws. In addition to en- suring compliance with the new standards, employers will also be required to address adminis- trative issues, as well as broader strategic considerations. Both at law firm Blakes in Calgary, Birch Miller is a partner practising in the areas of employment, labour and privacy law, and Bruce Graham is an associate practising in the areas of em- ployment and labour law. For more in- formation, visit www.blakes.com. strategy at the bargaining table during talks conducted with the B.C. Government and Service Employees' Union (BCGEU), for example, says Ekman. "It certainly wasn't a primary factor in determining the term of the agreement because that's a ne- gotiation piece with the employer." Economy has an impact e economy can also have an impact. With the 2008 economic downturn, for example, collective bargaining training also took a hit. "We tended to have contracts that were two to three years in length; all of a sudden, (unions and management) were asking for four and sometimes five years, and I think that was partly due to trying to moderate the raises because of the economy taking a bit of a dive," says Stephanie Noel, business development manager at Queen's University IRC in Kings- ton, Ont. "As they started to sign more of these deals, our participant levels dropped 20 to 30 per cent in some of the courses for about a two- to three-year period." e school offers a course that allows newcomers to the process to "actively participate" in how to bargain, which Noel said is be- coming more needed because the longer-term agreements mean there are inexperienced work- ers being asked to negotiate on committees — and many have no training. "They're an engineer, they didn't take collective bargaining in college or university." But things have changed recently. "Now, come 2016 and part of '17, enrolments are way up in the collective bargaining course and part of the reason I see that is when it was shorter terms, you would rotate a person or two into the table, and now if you are nego- tiating four-year or five-year con- tracts, sometimes the whole table is new people," says Noel. With inflation rates having been so low for so long, wages haven't needed to increase as dramatically as in the past, according to Cascad- den, "so it's generally pretty safe to put in place a collective agreement with a one-per-cent or a half-per- cent-per-year wage increase, and expect you'll be pretty close to keeping up with inflation." is has been especially acute in Alberta, where durations may change, he says. "In Alberta, we've been going through kind of an economic slowdown for a while and as we emerge from that, we may see shorter agreements, in part pref- aced on the fact that the unions may want to enjoy the benefits of increased profits, if the companies their members work for are hav- ing successful years and they don't want to tie themselves up." e health of a particular in- dustry can also play a role in the length of contracts, according to Ekman. "(Unions) may be more or less sympathetic to the desires of the employer not to allow wages to go up by a high percentile increase in each year than they would be un- der a different economic climate," he says. "Generally, that would prob- ably drive the length of the agree- ment down because usually if the employer comes and says, 'Look here's our books,' and they are quite open about the state of their finances — they're not seen to be hiding anything — and the union is convinced that this is actually a precarious position, so (they say) 'We can agree from a union per- spective that you can only afford a 0.5 or a one per cent increase this year and next.'" Precarious work consideration e rise of precarious work may be another reason unions want long-term security for workers. "It's no secret that precari- ous work, especially for non- unionized employees, is growing in Ontario, across Canada," says Johnstone. "It's certainly attractive to a cer- tain number of workers to be able to plan a little longer." If you have a five- or a six-year deal, "you know that if you are lucky enough to have a full-time job — unless something goes south for the employer — so you are more secure in terms of plan- ning what you are going to be making in three or four or five or six years down the road," he says. On the flip side, with the work- ing world changing so fast in a lot of industries, "two, three, four years can be an eternity," says Johnstone. Long-term impact So, in light of more longer-term agreements being signed, is the relationship between labour and management better or worse? e answer is not straightfor- ward, according to Ekman. "Because of all those little nu- ances, I don't think you can say generally a longer agreement is better for the relationship versus a shorter agreement," he says. "But I think a longer agreement is meant to be a reflection of con- fidence on both sides that what's in this agreement should carry us through the term." Economic downturn affects bargaining LONGER-TERM < pg. 26 "Precarious work is growing... It's certainly attractive to workers to be able to plan a little longer."

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